King v. United States, 10-CF-1263

Players:  Glickman, Thompson, Ruiz. Opinion by Ruiz.  Debra Soltis for Mr. King.  Trial judge: Dixon.

Facts:  Rashawn King was accused of shooting the decedent in an alley over a debt.  After the shooting, police set up surveillance around the home of Mr. King’s mother, where they believed he lived.  Mr. King did not return to his mother’s home for ten days after the incident.  At trial, the government sought to admit Mr. King’s flight from his mother’s home as evidence of his consciousness of guilt.  The defense objected, pointing out that during this time period, Mr. King was on the run for a juvenile matter.  The trial court held that both sides could present their explanations for Mr. King’s conduct to the jury. 

Issue: Whether the trial court erred by admitting evidence of Mr. King’s flight when the defense proffered an alternate explanation for Mr. King’s absence from his mother’s house.

Held:  The trial court erred by allowing the government to introduce evidence of Mr. King’s flight without first evaluating whether this evidence “demonstrated ‘actual guilt of the crime charged.’ Smith v. United States, 777 A.2d 801, 807 (D.C. 2001).” King, slip op. at 13 (emphasis added in King).  It was inadequate for the trial court to simply determine that because both sides had “a basis” for their theories as to King’s behavior, both sides could present those theories to the jury.  Id.  (Ultimately, the error in this case was found to be harmless.)

Of Note:

·         “When a defendant may have an unrelated strong reason to avoid the police, like guilt for another crime or fear of incarceration on an outstanding warrant, the trial court must consider that reason before determining whether to admit the government’s evidence of flight as relevant to consciousness of guilt of the charged crime.” Id. at 13-14.

·         If “the action that allegedly creates the inference [here, absence from mother’s home] suggests, as it does here, a reasonable alternative interpretation [being with a girlfriend, or on the run for a juvenile matter], the probative value largely, if not completely, disappears.’ [Williams v. United States, 52 A.3d 25, 41 (D.C. 2012)].”  Id. 

·         The government bears the burden of meeting each of the four factors described in United States v. Myers, 550 F.2d 1036 (5th Cir. 1977), to establish the admissibility of flight evidence.  Id. at 12.

How To Use: Evidence of flight is an important pre-trial issue to litigate.  With a strong alternate explanation for your client’s flight, you may be able to prevent the government’s prejudicial evidence of flight from ever being presented to the jury.  Getting a favorable pre-trial ruling will also obviate the need to introduce otherwise prejudicial evidence – e.g., that the client was on probation or had an outstanding warrant in another matter – in order to counter the government’s theory on flight.  NG

Cave v. United States, 12-CM-1311

Players:  Washington, Nebeker, Newman. Opinion by Nebeker.  Concurrence by Newman.  Brian MacAvoy for Mr. Cave.  Trial judge: Alprin.

Facts:  Mr. Cave was seated in his parked car when he was approached by officers who ordered him out of the car.  Mr. Cave refused to comply.  The officer claimed that Mr. Cave struck them before fleeing; defense witnesses claimed that Mr. Cave merely protected himself from the officers.  Mr. Cave is charged with assault on a police officer.  The trial judge stated that he was unable to determine which version of events was accurate but convicted Mr. Cave based on his own testimony that he refused a police order to exit his car.    

Issues: The parties agreed that the trial court erred by convicting Mr. Cave of assault on a police officer based entirely on his own testimony that he refused a police order to exit his vehicle.  “Mere passive resistance” or conduct that does not “‘actively or physically oppose or interfere with the officers’” cannot form a basis for conviction under D.C. Code § 22-405(b).  That left the following issue for appellate resolution: whether it was appropriate to remand the case for the trial judge to consider whether the remaining, disputed evidence provided an adequate basis for conviction. 

Held:  A remand is inappropriate.  The disputed evidence provided a sufficient basis for conviction; however, the trial court’s statement that “I’ll never know” “[h]ow it happened” constituted an implicit refusal to credit the officers’ version.  Thus, the trial court already determined that the remaining evidence could not sustain a conviction, and Mr. Cave’s convictions should be vacated. 

Of Note:  Judge Newman wrote a concurring opinion that critiqued the Court of Appeals’s frequent practice of remanding cases for further consideration by the trial judge.  Judge Newman quoted Supreme Court precedent that remand is “an exceptional course” appropriate only in “special circumstances.”  He further encouraged trial judges to rule in advance on potential alternate grounds and for trial counsel to request such rulings in advance or risk possible forfeiture on appeal. 

How To Use: For trial counsel: The D.C. assault on a police officer statute is broad, but it has limits.  Even though the text of the statute suggests that merely “opposing” a law enforcement officer is sufficient, see D.C. Code § 22-405(b), this case is a reminder that a violation of the law requires more than simple refusal to comply with a police order.  For appellate counsel: Generally, you are looking for the Court of Appeals to reverse your clients’ conviction and not to take the half-measure of granting a remand that may or may not ultimately yield a reversal.  If you are facing a possible remand but want a reversal, you can rely on Judge Newman’s concurrence to argue that remands should be reserved for exceptional cases.  Additionally, if the trial prosecutor failed to seek an alternate ruling below, this concurrence provides you with an argument that remand is inappropriate because the government has forfeited its right to request such a ruling from the trial court and does not deserve a second bite at the apple.  CK.